Final prayers for BBI as Supreme Court sets issues to be determined
By Paul Ogemba
| November 10th 2021
The last battle to salvage the Building Bridges Initiative (BBI) got underway yesterday when the Supreme Court singled out seven disputed issues that could break or restore the constitutional amendment process.
A full bench of the apex court first put its house in order by issuing three rulings, giving directions on the filing of submissions, and setting aside three days in January next year when the parties will present and argue their cases.
Unlike in other proceedings where the parties set their own issues which they ask the court to determine, the apex court judges said they decided to come up with the issues and allow parties to file their submissions in support or against them.
“Having gone through the appeals and the responses, the court is of the considered view that the seven issues are what form the basis of the BBI appeals and which the parties need to address us on in their submissions,” ruled the judges.
In addition to the issues they want to determine is the basic structure doctrine, whether it is applicable in Kenya, and whether the Constitution can only be changed by following four steps in sequence: civic education, public participation, constituent assembly debate, and a referendum.
Both the High Court and the Court of Appeal declared the basic structure principle is applicable to Kenya and declared the BBI as unconstitutional for seeking to alter it without following the required order.
The Supreme Court judges have also framed President Uhuru Kenyatta’s involvement in the BBI process as an issue for determination, given that the Court of Appeal found that the President has no power to initiate a popular initiative to amend the Constitution.
“The question we want to determine is whether the President can initiate changes to amend the Constitution, or whether the process should be initiated by Parliament or through a popular initiative by the people,” said Chief Justice Martha Koome.
The judges also said they want to determine whether a disputed proposal to create an additional 70 constituencies is unconstitutional.
Because the Court of Appeal had upheld a High Court finding that the President can be sued in his personal capacity, the Supreme Court judges said they would determine whether civil proceedings can be initiated against the President or any person acting in that capacity.
“The other issue we would want to determine is the place of public participation in the constitutional amendment process, the role of the electoral commission and whether there was adequate public participation in the BBI process,” said the judges.
According to the apex court, the minimum number of commissioners required for the IEBC to conduct business will form the other issue of determination after the Appellate Court found that the commission was not properly constituted at the time it approved the BBI.
The final issue the judges set for determination is whether each proposed constitutional amendment should be subjected to a distinct referendum question as determined by the Appellate Court.
On the rulings issued by the court, they dismissed an application by activist Isaac Aluochier that sought the disqualification of justices Mohamed Ibrahim, Smokin Wanjala and Njoki Ndung’u over allegations of misconduct.
“He does not disclose any evidence of misconduct against the named judges and in the absence of such evidence, his claims of bias are far-fetched and speculative. He has not disclosed any charges against the judges which will affect their impartiality in hearing this BBI case,” ruled the judges.
Mr Aluochier filed a complaint of misconduct against the judges at the Judicial Service Commission in 2016 but the apex court stated that the commission is independent and should be allowed to handle the petition without interference.
The judges also dismissed an application by the Party of National Unity to be enjoined as an interested party, ruling that the party had not disclosed any interest it had or prejudice it would suffer if it was locked out of the case.
They, however, allowed applications by eight local and international law professors to join as amicus curiae (friends of the court).
“We find that they have valuable information that will help the court in making its determination. They will, however, only file their briefs and will be barred from making oral submissions,” ruled the judges.
Among those allowed to assist the court are professors Migai Akech and David Landau (US), Yaniv Roznai (Israel), Rosalind Dickson (Australia), Gautam Bhatia (India) and Richard Albert (US).
The Supreme Court also consolidated three BBI appeals by the Attorney General, IEBC and lawyer Morara Omoke. The judges gave the three appellants 15 days to file their responses, and the respondents to file responses within another 15 days. Hearing was set for January 18, 19 and 20 next year.
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